R v Anwar [2016] EWCA Crim 551

Facts

• The Court of Appeal in R v Anwar [2016] EWCA Crim 551 considered the application of the new joint enterprise liability principles established by R v Jogee [2016] UKSC 6.
• The case focused on whether and how convictions decided under the previous “foresight of possibility” standard for secondary party liability should be reviewed and potentially overturned following the Jogee decision.
• The court examined trial records, the directions given to the jury, and the evidence presented, particularly where convictions were secured based on the earlier standard.
• The appeal addressed procedures for reviewing such convictions and determining their ongoing validity.

Issues

1. Whether convictions under the old “foresight of possibility” standard for joint enterprise must be quashed following the revised test in R v Jogee.
2. How to assess whether a conviction remains valid under the Jogee standard by reviewing jury directions and trial evidence.
3. Whether demonstrating substantial injustice requires anything beyond showing the conviction is legally invalid due to misdirection.

Decision

• The Court of Appeal held that a conviction based on the pre-Jogee foresight standard is likely invalid unless evidence shows the jury would have convicted under the correct test.
• The court clarified that “substantial injustice” is not a separate or additional hurdle; if a legal error renders the conviction invalid, substantial injustice is automatically established.
• The appropriate test is a detailed review of jury directions and trial evidence to determine if the conviction meets the Jogee standard for secondary liability.
• An appeal court need not simply re-examine all evidence but must focus on how the legal misdirection affected the verdict.

Legal Principles

• Jogee established that the correct mens rea for secondary liability in murder is intentional assistance or encouragement with knowledge of the principal’s intent, replacing the previous test of mere foresight.
• A conviction secured under the old foresight rule lacks validity unless the higher Jogee threshold is clearly satisfied.
• The requirement of “substantial injustice” is fulfilled by proving legal invalidity; no additional showing is required.
• Reviewing pre-Jogee convictions demands analysis of the factual matrix, jury instructions, and whether the evidence proves intent as now required by law.

Conclusion

R v Anwar [2016] EWCA Crim 551 provides the authoritative process for applying R v Jogee to appeals, ensuring that pre-Jogee convictions are assessed for validity under the revised law and that substantial injustice is presumed where legal error is established, thus aligning joint enterprise liability with modern criminal law standards.